Mask or No Mask – Who Gets to Choose?

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Up until last week, Virginia public schools required all students to wear a face covering during school. Now, the governor has issued new guidance that parents may elect whether or not their student has to wear a mask.

But for divorced or separated parents – the decision may not be quite so easy. Parents who share joint legal custody will have to work together to decide, or they will have to bring it up in court.

Joint Legal Custody

Most parents in Virginia share joint legal custody, which means they have an equal say in all important decisions regarding their child’s health, education, and general welfare. Any decisions on vaccinations, schools, religion, and other important decisions are to be made 50/50 between the parents. When there is disagreement, a parent can petition the court to obtain “final decisionmaking authority” or even sole legal custody over their child.

For those parents with sole legal custody, the other parent will not have any say in whether or not the child wears a mask.

Decision Struggles

Some common disputes parents face include whether and when to obtain vaccines, choice of religious upbringing, and medical treatment and testing. Most of the time, the court will look to side with an expert in breaking the tie between parents who disagree. If the child’s pediatrician has recommended testing or treatment, for example, the court is likely to defer to their expertise in making a future court order.

Appointing a GAL

In making a custody modification, the court will likely appoint a guardian ad litem, an independent attorney appointed to advocate for and represent the child’s best interests in the case. It’s important to note that the GAL does not represent the child’s wishes, rather, his or her best interests in the case. The child’s preference is only one factor for the court to weigh in making a determination.

When the court hears evidence, the judge is likely to defer heavily to any recommendations from the GAL, so it’s essential to have your information provided in advance.

The best interests of the child standard

In weighing all sides, the court will look to the best interests of the child factors in 20-124.3 to make its decision. The factors are:

  1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
  2. The age and physical and mental condition of each parent;
  3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
  4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
  5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
  6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
  7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
  8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
  9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
  10. Such other factors as the court deems necessary and proper to the determination.

About Melone Hatley, P.C.

If your co-parent is making it impossible to take care of your child, it’s time to get counsel. The top-rated attorneys at Melone Hatley, P.C. are here to help! Melone Hatley, P.C. is a family and estate firm serving Virginia Beach and Northern Virginia. Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients.

We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about custody, contact our office at 800.479.8124 or visit our website:

Rebecca Melone

Written By Rebecca Melone

Rebecca Melone established Melone Hatley P.C. in 2014 with the goal of helping families with a range of legal services from estate and family law to traffic tickets and misdemeanor criminal matters.
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